Court-Ordered Maps: A Step toward Gerrymander Reform in Virginia

By Brian Cannon, Executive Director, OneVirginia2021

Predicting how a court will rule is always dicey, but there is good reason to believe that the Republican leadership in the Virginia House of Delegates will fail in their attempt to delay or defeat a court order to redraw General Assembly districts. If that’s the outcome, then the uncertainty a new political map would create might open a path for reform between the partisan interests of both Republicans and Democrats.

Historically, when either party has the upper hand in the legislature, it draws political boundaries to protect its incumbents and put its opponents at risk in the next election. That’s the essence of gerrymandering. The political map at issue in this federal court case, known as Bethune Hill v. State Board of Elections, was drawn when Republicans had control of the House in 2011. While the map disadvantaged Democrats, they did overwhelmingly vote for this plan in the House of Delegates and in the Virginia Senate.

In Bethune Hill, the federal court for the Eastern District of Virginia recently [June 26, 2018] struck down 11 House districts and gave the Assembly until October 30 to come up with new boundaries. Those changes could affect more than 30 districts from Richmond to Virginia Beach and all along the south side of the state (see VPAP visual here). This puts control of the House of Delegates up in the air, and not knowing which party will be in charge should give both Republicans and Democrats an incentive to curb political gerrymandering in Virginia.

First, though, the Republican leadership has said it will appeal the district court ruling to the U.S. Supreme Court, and asked the district court to withdraw its October 30 deadline in the meantime. If the district court refuses, the Republican leadership will take that request directly to SCOTUS.

Attorney General Mark Herring, whose office defended the 2011 map through several rounds of the Bethune Hill case, has announced that the state will not challenge the district court’s order to make a new map. Herring argued further that the state’s withdrawal should mean the Republican House leadership has no legal standing to continue its court fight. It’s a novel argument, but it might prevail.

Even if Herring’s argument fails, and the House leadership gets the question back to SCOTUS, their odds of success seem low. The justices have already had some choice words to say about that 2011 map, and the racial quotas used to draw the 11 districts thrown out by the district court.

Speaker Kirk Cox released a statement expressing his disappointment and noting that, “These districts were drawn with overwhelming bipartisan support, including with the support of a majority of the African-American members of the House of Delegates.” That’s absolutely true. Even the chair of the Democratic National Committee, Tom Perez, in his prior post as Assistant Attorney General for Civil Rights at the Justice Department, certified the maps as compliant with the Voting Rights Act. But bipartisan support for these maps will not save them.

When SCOTUS reviewed the 55% threshold for African American voters in this district, it looked unfavorably on the maps. SCOTUS reversed a prior court ruling (that the districts were not racially gerrymandered) in an 8-1 decision. The “1” was Justice Clarence Thomas, who would have struck down an extra district beyond what the eight-member majority did.

In his written opinion, Justice Thomas said clearly that “the State did not narrowly tailor its use of race to comply with §5 [of the Voting Rights Act].” Justice Thomas called Delegate Jones’ approach to arriving at the 55% threshold for black voters a “back-of-the-envelope calculation [that] does not qualify as rigorous analysis.” Ouch.

It seems unlikely that SCOTUS would suddenly warm up to the 55% figure they universally found problematic just last year. It does not appear that anyone on the Court has a truly sympathetic ear for an appeal by House Republicans.

So, with that caveat about predicting what any court will do, I suspect that the Republican appeal will fail. That means a new map for the House of Delegates in time for the November 2019 election. And that new map will deliver, among other things, uncertainty in the next General Assembly election.

Like honest competition in an election, that uncertainty is a political virtue. If both Republicans and Democrats are unsure who will be in charge when all 100 House districts and all 40 Senate districts must be remapped after the 2020 Census, they should be more open to the idea of leaving the remapping to an independent commission.

We need an amendment to the Virginia Constitution that helps us move beyond the political gerrymandering—and beyond the litigation—we’ve seen for far too long from both parties. But that is a two-year process, and the clock is ticking. We need to pass a Constitutional amendment in the upcoming 2019 session of the General Assembly and pass it again in the 2020 session in order to put it before the voters that November. That’s how we the voters will have our chance to vote to end gerrymandering.

Citizen commissions are working all over the country, producing better districts that reflect communities and inject genuine competition into the system. That’s certainly a better way for voters, and maybe when they can’t quite see whether they or their opponents will have the upper hand, the politicians will see that it’s a better way for them, too.